B-72064, MARCH 1, 1948, 27 COMP. GEN. 487

B-72064, MARCH 1, 1948, 27 COMP. GEN. 487

EVIDENCE - PRESUMPTION OF DEATH - SETTLEMENT WITH SURVIVORS UNDER ARMED FORCES LEAVE ACT OF 1946 AFFIDAVITS SUBMITTED IN LIEU OF THE STANDARD CERTIFICATE OF DEATH INDICATING THAT A FORMER ENLISTED MAN WAS LAST SEEN ALIVE IN AN AREA DEMOLISHED BY THE EXPLOSION WHICH OCCURRED IN TEXAS CITY, TEXAS, ON APRIL 16, 1947, AND THAT HIS BODY HAS NOT BEEN RECOVERED AND HE HAS NOT BEEN SEEN NOR HEARD FROM SINCE THAT DATE, TOGETHER WITH THE PUBLICIZED REPORTS OF THE DISASTER, ARE SUFFICIENT TO JUSTIFY AN INFERENCE OR PRESUMPTION THAT THE MAN DIED IN SUCH DISASTER SO AS TO WARRANT A SETTLEMENT WITH HIS SURVIVORS FOR THE UNUSED MILITARY LEAVE TO HIS CREDIT AT THE TIME OF DISCHARGE IN THE MANNER PRESCRIBED BY THE ARMED FORCES LEAVE ACT OF 1946.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. S. H. SMITH, U.S. ARMY, MARCH 1, 1948:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF DECEMBER 12, 1947, YOUR LETTER OF DECEMBER 1, 1947, WITH ENCLOSURES, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MRS. REBA E. JOLLEY, ROUTE 1, BOX 80, TEXAS CITY, TEXAS, COVERING CLAIM ON BEHALF OF HERSELF AND TWO MINOR CHILDREN AGES 5 1/2 AND 4 FOR 29 DAYS' UNUSED LEAVE TO THE CREDIT OF HER HUSBAND, FRANK P. JOLLEY, FORMER SERGEANT, ARMY OF THE UNITED STATES, AT THE TIME OF HIS DISCHARGE JULY 9, 1941.

IT APPEARS FROM THE EVIDENCE SUBMITTED THAT MR. JOLLEY RESIDED IN TEXAS CITY, TEXAS, AND THAT HE WAS IN THE IMMEDIATE VICINITY OF THE DOCKS WHEN THE EXPLOSION DISASTER OCCURRED IN THAT CITY ON APRIL 16, 1947, AND THAT HIS BODY HAS NOT BEEN RECOVERED AND HE HAS NOT BEEN SEEN NOR HEARD FROM SINCE THAT DATE. HENCE, THE QUESTION ARISES AS TO WHETHER AFFIDAVITS SUBMITTED IN LIEU OF THE STANDARD CERTIFICATE OF DEATH MAY BE ACCEPTED AS SUFFICIENT PROOF OF HIS DEATH FOR THE PURPOSE OF EFFECTING SETTLEMENT WITH THE SURVIVORS FOR UNUSED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISAPPEARANCE.

SECTIONS 5 (A) AND 6 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 965, AS AMENDED BY THE ACTS OF JULY 26, 1947, 61 STAT. 510, AND AUGUST 4, 1947, 61 STAT. 748, PROVIDE THAT LEAVE TO BE SETTLED AND COMPENSATED FOR UNDER SECTION 6 SHALL BE MADE ENTIRELY IN CASH IN ANY CASE WHERE, AS HERE, AN ENLISTED MEMBER OF THE ARMED FORCES IS DISCHARGED PRIOR TO JANUARY 1, 1943, IF APPLICATION IS MADE THEREFOR PRIOR TO SEPTEMBER 1, 1948. SECTION 6 (B) OF THE SAID ACT, 60 STAT. 966, PROVIDES THAT IN THE CASE OF A MEMBER OF THE ARMED FORCES WHO DIES AFTER DISCHARGE OR ON OR AFTER SEPTEMBER 1, 1946, IF NOT DISCHARGED PRIOR TO THAT DATE, AND BEFORE SETTLEMENT AND COMPENSATION HAVE BEEN EFFECTED, SETTLEMENT AND COMPENSATION SHALL BE MADE UPON APPLICATION THEREFOR WITH SUCH MEMBER OR FORMER MEMBER'S SURVIVORS, AS FOLLOWS: "TO SUCH MEMBER'S OR FORMER MEMBER'S SURVIVING SPOUSE AND CHILDREN, IF ANY, IN EQUAL SHARES.' SECTION 6 (C) OF THE ACT, 60 STAT. 967, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

WHERE THE SECRETARY IS OF THE OPINION THAT ANY MEMBER OR FORMER MEMBER OF THE ARMED FORCES OR ANY SURVIVOR OF ANY SUCH MEMBER OR FORMER MEMBER IS, BY REASON OF BEING EITHER UNDER SEVENTEEN YEARS OF AGE OR UNDER MENTAL DISABILITY, INCAPABLE OF SATISFACTORILY LOOKING AFTER HIS OWN INTERESTS, SUCH SECRETARY MAY SETTLE AND COMPENSATE UNDER THIS SECTION WITH A PROPER PERSON SELECTED BY HIM FOR THE USE AND BENEFIT OF SUCH MEMBER, FORMER MEMBER OR SURVIVOR, WITHOUT THE NECESSITY OF RESORTING TO JUDICIAL PROCEEDINGS FOR THE APPOINTMENT OF A LEGAL REPRESENTATIVE. SETTLEMENT AND COMPENSATION MADE UNDER THE PROVISIONS OF THIS SUBSECTION SHALL CONSTITUTE A COMPLETE DISCHARGE OF THE OBLIGATIONS OF THE UNITED STATES UNDER THIS ACT. THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY WHEN A LEGAL GUARDIAN OR COMMITTEE HAS BEEN JUDICIALLY APPOINTED FOR ANY SUCH MEMBER, FORMER MEMBER, OR SURVIVOR, EXCEPT AS TO ANY SETTLEMENT AND COMPENSATION MADE PRIOR TO THE RECEIPT OF NOTICE OF APPOINTMENT * * *.

IT IS APPROPRIATE TO POINT OUT THAT IN THE CASE OF DECEASED MEMBERS OR FORMER MEMBERS THE STATUTE AUTHORIZES SETTLEMENT AND COMPENSATION TO BE MADE WITH THE SURVIVING SPOUSE AND CHILDREN, IF ANY, IN EQUAL SHARES, AND ALSO AUTHORIZES THE SECRETARY, IN THE CASE OF SURVIVORS UNDER 17 YEARS OF AGE, TO SETTLE AND COMPENSATE UNDER SECTION 6 (C) OF THE ACT WITH A PROPER PERSON SELECTED BY HIM "FOR THE USE AND BENEFIT OF" SUCH SURVIVOR, WITHOUT RESORTING TO JUDICIAL PROCEEDINGS FOR THE APPOINTMENT OF A LEGAL REPRESENTATIVE. HENCE, IT WOULD APPEAR THAT ANY CHECK REPRESENTING AN INFANT CHILD'S SHARE OF SUCH PAYMENT SHOULD BE DRAWN IN FAVOR OF THE PERSON SELECTED BY THE SECRETARY "FOR THE USE AND BENEFIT OF" SUCH MINOR CHILD.

WITH RESPECT TO THE SPECIFIC QUESTION PRESENTED, THE LAW PRESUMES THAT A PERSON SHOWN TO BE ALIVE AT A GIVEN TIME REMAINS ALIVE UNTIL THE CONTRARY IS SHOWN BY SOME SUFFICIENT PROOF, OR, IN THE ABSENCE OF SUCH PROOF, UNTIL A DIFFERENT PRESUMPTION ARISES, SUCH AS THE PRESUMPTION OF DEATH FROM THE CONTINUED AND UNEXPLAINED ABSENCE OF A PERSON FROM HIS HOME OR PLACE OF RESIDENCE WITHOUT ANY INTELLIGENCE FROM, OR CONCERNING HIM, FOR A PERIOD OF SEVEN YEARS. 16 AM.JUR., SECTIONS 13 AND 18. HOWEVER, AN INFERENCE OR PRESUMPTION THAT AN ABSENT PERSON DIED BEFORE THE EXPIRATION OF SEVEN YEARS MAY BE JUSTIFIED WHERE, IN CONNECTION WITH OTHER PARTICULAR CIRCUMSTANCES, IT APPEARS THAT WITHIN THAT PERIOD HE ENCOUNTERED SOME SPECIAL PERIL OR CAME WITHIN RANGE OF SOME IMPENDING OR IMMINENT DANGER WHICH REASONABLY MIGHT BE EXPECTED TO DESTROY LIFE, SUCH AS A FOREST FIRE OR A FALL INTO A CREVICE. 16 AM.JUR., SECTION 37. IN THE CASE OF FANNING V. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, 107 A. 715, IT APPEARS THAT A GREAT FOREST FIRE WAS RAGING IN THE VICINITY OF THE RESIDENCE OF ONE FANNING, AND THAT MANY PERSONS HAD PERISHED IN THE FIRE, SOME BEING BURNED BEYOND RECOGNITION; THAT ONE SATURDAY NIGHT THE SAID FANNING INFORMED A FRIEND THAT HE WAS GOING TO HELP FIGHT THE FIRE, AFTER WHICH HE NEVER WAS SEEN NOR HEARD FROM AGAIN. IN A SUIT BROUGHT MORE THAN 7 YEARS THEREAFTER TO RECOVER ON A LIFE INSURANCE POLICY THE COURT CONCLUDED THAT SUCH EVIDENCE WAS SUFFICIENT TO SUSTAIN AN INFERENCE OR PRESUMPTION THAT FANNING HAD DIED IN SUCH FIRE. IN THE CASE OF BROWNLEE, ET AL. V. MUTUAL BENEFIT HEALTH AND ACCIDENT ASSOCIATION, 29 F.2D 71, INVOLVING AN ACTION TO RECOVER ON AN ACCIDENT INSURANCE POLICY, IT APPEARS THAT ON JANUARY 1, 1927, ONE BROWNLEE AND A COMPANION SET OUT TO CLIMB A MOUNTAIN IN OREGON WHICH WAS ICY AND TREACHEROUS; THAT WHEN THEY HAD ASCENDED A CONSIDERABLE DISTANCE A SEVERE SNOW STORM AROSE WHICH IMPEDED THEIR VIEW AND THAT THEY BECAME SEPARATED AFTER WHICH THE COMPANION TURNED BACK WHILE BROWNLEE KEPT ASCENDING; AND THAT ALTHOUGH SEARCHING PARTIES WERE SENT OUT IMMEDIATELY, AND AGAIN IN THE SUMMER, HIS BODY NEVER WAS RECOVERED. THE COURT OF APPEALS, IN AN OPINION RENDERED A LITTLE MORE THAN A YEAR AFTER THE ACCIDENT OCCURRED, POINTED OUT THAT THE PERIL OF FALLING INTO A CREVICE OR OF FALLING IN SOME OTHER MANNER WAS IMMINENT AND THAT IF THE JURY FOUND, AS IT COULD HAVE FROM THE EVIDENCE, THAT THE INSURED MET WITH AN ACCIDENT RESULTING IN HIS DEATH, THE INFERENCE FOLLOWED THAT THE ACCIDENT OCCURRED IMMEDIATELY FOLLOWING HIS SEPARATION FROM HIS COMPANION. ALSO, SEE KRELL V. MARYLAND DRYDOCK COMPANY (1945), 41 A.2D 502, WHERE A JUDGMENT FOR WORKMEN'S COMPENSATION WAS ENTERED LESS THAN A YEAR AFTER THE DISAPPEARANCE OF AN EMPLOYEE OF A DRYDOCK COMPANY WHOSE DUTIES TOOK HIM IN CLOSE PROXIMITY TO DEEP WATER. THE EVIDENCE SHOWED THAT THE EMPLOYEE COULD NOT HAVE LEFT THE PREMISES BY LAND WITHOUT BEING SEEN BY GUARDS; THAT HE WAS LAST SEEN HURRYING ALONG THE SEA WALL TOWARD THE DRYDOCK; THAT HE HAD NOT BEEN SEEN FOR ALMOST A YEAR THEREAFTER AND THAT HIS BODY HAD NOT BEEN RECOVERED. ON THE BASIS OF SUCH EVIDENCE THE COURT CONCLUDED THAT A JURY WOULD BE JUSTIFIED IN FINDING THAT THE EMPLOYEE WAS DEAD AND THAT DEATH HAD OCCURRED BY ACCIDENTAL DROWNING ARISING OUT OF AND IN THE SCOPE OF HIS EMPLOYMENT.

IN THE PRESENT CASE, THREE AFFIDAVITS HAVE BEEN SUBMITTED TENDING TO ESTABLISH THAT MR. JOLLEY MET HIS DEATH IN THE TEXAS CITY DISASTER. THE FIRST OF SUCH AFFIDAVITS, EXECUTED BY BEN L. MITCHELL, IS DATED MAY 6, 1947, AND READS AS FOLLOWS:

I AM A TRUSTEE OF THE TEXAS CITY HEIGHTS VOLUNTEER FIRE DEPARTMENT AND HAVE KNOWN MR. FRANK P. JOLLEY APPROXIMATELY FIVE YEARS. ON THE MORNING OF APRIL 16, 1947 I HEARD THE SIREN OF POLICE OFFICER BELL'S MOTORCYCLE AND AS I WAS ON MY WAY TO GALVESTON HE PASSED ME. I FOLLOWED HIM FOR A SHORT DISTANCE WHEN I SAW SMOKE COMING FROM THE WATERFRONT AREA OF TEXAS CITY, TEXAS. I PROCEEDED TO THE DOCK AREA AND AT ABOUT 9:00 A.M. I SAW MR. FRANK P. JOLLEY TRYING TO STRAIGHTEN OUT THE FIREHOSE ABOUT MIDSHIP OF THE SS GRANDCAMP WHICH WAS MOORED AT THE TEXAS CITY DOCKS. MR. JOLLEY WAS STANDING ON THE DOCKS.

I LEFT THE DOCKS OF TEXAS CITY, TEXAS ABOUT FIVE MINUTES LATER AND THE EXPLOSION OCCURRED ABOUT FIVE MINUTES AFTER MY LEAVING.

THIS IS THE LAST TIME I SAW MR. JOLLEY AND HAVE NOT SEEN HIM SINCE THAT TIME.

THE SECOND AFFIDAVIT, EXECUTED BY G. P. HITCHCOCK, DATED MAY 8, 1947, IS AS FOLLOWS:

ON MAY 2, 1947, IN THE COMPANY OF MISS IRIS BARFIELD OF 2920 AVENUE R., GALVESTON, TEXAS, I INTERVIEWED RICHARD HARTNETT IN ST. MARY'S INFIRMARY LOCATED IN GALVESTON, TEXAS. RICHARD HARTNETT WAS CONFINED TO HIS BED WITH A BROKEN NECK AND HE STATED THAT HE IS 13 YEARS OF AGE AND THAT ON THE MORNING OF APRIL 16, 1947 AT ABOUT 8:45 A.M., TOGETHER WITH HIS FATHER MR. EARL C. HARTNETT AND MR. FRANK PLATT JOLLEY, A NEIGHBOR, HE PROCEEDED TO THE FIRE ON THE WATERFRONT LOCATED AT TEXAS CITY, TEXAS. HE FURTHER STATED THAT HE, HIS FATHER AND MR. JOLLEY ARRIVED IN THE VICINITY OF FRANK'S CAFE WHICH IS LOCATED ABOUT A HALF BLOCK FROM THE DOCK AT WHICH THE S.S. GRAND CAMP WAS MOORED. HE ARRIVED AT THIS POINT ABOUT 9:05 A.M. AND THAT HE REMAINED IN THE AUTOMOBILE. HIS FATHER LEFT THE CAR AND WENT TO TALK TO SOMEONE STANDING NEAR AN AMBULANCE WHICH WAS ONLY A SHORT DISTANCE AWAY. MR. FRANK P. JOLLEY PROCEEDED ON DOWN THE STREET IN THE DIRECTION OF THE DOCK AND JUST HAD SUFFICIENT TIME TO REACH THE DOCK AT WHICH THE S.S. GRAND CAMP WAS MOORED WHEN THE EXPLOSION OCCURRED.

RICHARD HARTNETT HAS NOT SEEN MR. FRANK PLATT JOLLEY SINCE THE TIME THAT HE SAW HIM WALKING TO THE DOCK WHICH WAS A MINUTE OR TWO BEFORE THE EXPLOSION OCCURRED AT 9:12 A.M. ON APRIL 16, 1947.

HIS FATHER, WHO WAS A SHORT DISTANCE AWAY FROM THE CAR IN WHICH HE, RICHARD HARTNETT, SAT, WAS KILLED IN THE EXPLOSION BUT HIS BODY WAS RECOVERED.

THE THIRD AFFIDAVIT, EXECUTED BY IRIS BARFIELD, DATED MAY 8, 1947, ALSO BASED UPON AN INTERVIEW WITH RICHARD HARTNETT, IS SUBSTANTIALLY SIMILAR TO THAT EXECUTED BY MR. HITCHCOCK.

ON THE BASIS OF SUCH AFFIDAVITS AND THE PUBLICIZED REPORTS CONCERNING THE TEXAS CITY DISASTER, IT REASONABLY APPEARS THAT THE CIRCUMSTANTIAL EVIDENCE IS SUCH AS TO JUSTIFY AN INFERENCE OR PRESUMPTION THAT MR. JOLLEY DIED IN SUCH DISASTER SO AS TO WARRANT THE GOVERNMENT SETTLING AND COMPENSATING HIS SURVIVORS, IN THE MANNER PRESCRIBED BY STATUTE, FOR THE UNUSED LEAVE TO HIS CREDIT AT THE TIME OF HIS DISCHARGE FROM THE ARMY. ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, IF OTHERWISE CORRECT, IS AUTHORIZED.